RAMASWAMY PATHAR Vs. THIAGARAJA CHETTIAR

JUDGEMENT

(1.) THE revision petition has been filed by the tenant against the order of the Appellate Authority, namely, the Subordinate Judge, Mayuram, dated 19th March, 1981 in C. M. A. No. 107 of 1980 allowing the appeal preferred by the landlord against the order of dismissal of R. C. O. P. No. 19 of 1980 by the Rent Controller (District Munsif), Mayuram, dated 9th September, 1980. THE landlord had filed R. C. O. P. No. 19 of 1980 under section 10 (2) (i) of Act XVIII of 1960 on the ground of wilful default by the tenant in paying the arrears of rent of Rs. 320 at the rate of Rs. 20 per month from 1st December, 1978 till the end of 31st March, 1980. THE defence raised by the tenant was that the landlord used to receive the rents in lump sum once in six months or once in a year as he had requested the tenant to allow the rents to accumulate and pay the same in lump sum so that it would serve a substantial purpose, and that the tenant has been in occupation since 1960 though a renewal lease deed was executed on 2nd September, 1971. THE learned Rent Controller has upheld the plea of the tenant relying upon the evidence of P. S. 1 to say that the tenant used to pay the rents once in two months or four months after demand was made by P. W. 1, and that therefore, there was no wilful default on the part of the tenant. On appeal, the learned Subordinate Judge has relied upon M. Nagalinga Josier v Trust for Building belonging to T.K.S.A.S. Punniyappan Nadar, Sons1, and Lingambhosala Subbaya v. THE Subordinate Judge, Vijayawada and others2, and found that even though the tenant had pleaded that the landlord used to receive the rent once in six months or once in a year, the tenant has not produced any katchayat book to prove such plea and that the tenant has committed wilful default since he has not paid the arrears of rent for nearly 16 months.

(2.) THE learned counsel for the petitioner has argued that the tenant is also occupying a shop about two or three shops away from the shop of the landlord, that if there was no custom of receiving the rent once in three months or four months or one year, the landlord would have taken immediate steps to evict the tenant and that under the Explanation to section 10 (2) (i) the presumption of wilful default cannot be raised since the tenant has immediately remitted the entire arrears of rent of Rs. 340 on receipt of the lawyer-s notice along with the original of Exhibit A-2 reply notice. In support of such argument, he has relied upon the belated lawyer notice served by the landlord after having kept quiet for about 16 months. But the learned counsel for the landlord states that because he was lenient, it cannot be said that he was receiving the rents in lumpsum.

(3.) IT can be understood if the landlord was away from the building and the tenant made delay in the payment of rent, that there is possibility of wilful default on the part of the tenant Here, the landlord who is a businessman would not have allowed the tenant to commit wilful default constantly, unless he had not allowed the tenant to pay the rent in lumpsum. IT is such a contingency that has been considered in Komalam Ammal v. Ashoka Cycle and Motor Company1. Here the presumption of wilful default cannot be made since the tenant has paid the entire amount immediately after receipt of the notice, explaining his stand. In the circumstances, the conclusion of the Rent Controller that there was no wilful default is quite correct and the decision of the Appellate Authority is not correct. Therefore, the order of the Appellate Authority is set aside. The revision petition is allowed, but in the circumstances, without costs, and the order of the learned Rent Controller is upheld. Petition allowed.